Keeping on the right side of the law when using third party images

Using other people's corporate and brand images without consent is obviously asking for trouble. But what about using other types of image for commercial purposes? The internet is awash with free-to-view images and there is an understandable temptation to appropriate them in some fashion for one's own use, without ever verifying whether or not those images are still subject to copyright and, if so, seeking an appropriate licence from the copyright holder. Brian Bannister, Company Commercial Solicitor, explains here the best option for you when using images for commercial purposes.

If you want to use an image for commercial purposes, by far the most prudent course of action is to source it from a digital library. You can be reasonably confident that if a library asserts copyright in an image, it can give you the protection of a valid licence. The same cannot always be said if an image is copied from another website or from another digital or non-digital source. In those circumstances, it is possible that copyright resides elsewhere and your source might even itself have misappropriated the image. Nevertheless, the effort of seeking consent at least evidences the fact that you have addressed the issue in good faith, should the rightful copyright holder subsequently make itself known to you.

'Creative Commons' is a US not-for profit organisation. These days, Creative Commons copyright licences are in widespread use (including by many digital libraries), and we strongly recommend that they should form at least the starting point in any negotiation for an image licence. This is even more the case where there are multi-jurisdictional issues involved. If you are happy to use an image under one of the three varieties of standard Creative Commons licence permitting commercial use (there are three others that prohibit it), then a good place to start would be with the Creative Commons search engine which claims to list over three hundred million images from nineteen collections.

Alternatively, Flikr claims to host over two hundred million images that are subject to a Creative Commons licence, as well as a further one million six hundred thousand images that have been formally put in the public domain via a Creative Commons 'Public Domain Dedication'.

These licences are now in their fourth (2013) edition and the base (English language) versions of the six types of licence have been refined over successive editions in an attempt to make them fully enforceable world-wide. This removes the need to modify (or 'port') the licences so as to cater for the specific requirements of different jurisdictions. These base versions are freely available on the Creative Commons website.

'Porting' should be distinguished from officially-sanctioned translations of the English-language fourth edition licences into other languages; a project that is ongoing. Although these renderings are all meant to be 'literal' translations, it is inevitable that having such a variety of translations reinforces the likelihood of different judicial interpretations arising over time across various jurisdictions, as an accurate but totally verbatim or literal translation is notoriously difficult to achieve. For cross-jurisdiction licences we would therefore recommend using the English language licences.

Creative Commons' licences have a wider application beyond that of securing permissions for the commercial use of images. They can, for example, be used to license data and database rights, broadcast rights and sound recording rights but they are not suitable for licensing logos or trademarks  or software.

We can assist in tailoring the appropriate licence to meet your specific circumstances and negotiating any necessary or desirable changes to the standard wording. For more information, please contact Brian Bannister on 023 8071 7466 or email brianbannister@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.